Routine Dismissive Agreements To Terms Of Service Are A Real Problem (Poll Inside)

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Infopolicy

Infopolicy

The habit for companies to write terms of service to a length and complexity nobody can understand, coupled with the subsequent habit of everybody of agreeing to them without reading them, has become a real problem. It undermines the concept of contracts as such, and it enables corporations to undermine citizens’ rights without democratic oversight. Maybe regulation is needed.

People are agreeing to anything with a “yeah, whatever” shrug today. A particular website’s terms of service may well include signing away their entire inheritance and house, and it’s likely nobody would notice. This is a real problem, as our ancestors fought hard to give us the rights we have today – rights that are routinely signed away just to play the latest game.

But it’s more complex than that. By a collective mounting of insurmountable obstacles from the entire corporate world to do anything today, we have become desensitized to the concept of a contract. Normally, this was something you’d read, consider, possibly consult with a lawyer, and then sign. But when faced with several of these a week in your daily personal life, doing so would absorb all your waking time.

So we do what humans do. We take shortcuts and cut corners. “Yeah, sure, whatever.”

In a poll whether people usually read the Terms of Service for a website or software before clicking “I agree”, 76% responded “No”. The rest clicked on “I agree”. Yes, really – this actually happened:

Actual poll results. You couldn’t make it up.

This problem is twofold. The immediate danger is that citizens are giving away all the rights they would normally have under law, establishing a new baseline of no rights at all that will become the law as the next generation grows up seeing it as the norm. The second problem is that corporations see themselves as needing all of these – excuse the French – bullshit contracts just to show you a simple cartoon.

Since when did we need to sign terms in blood just to go about our daily lives? Where did this come from? I’d sum the reason up to three words: lawyers, litigation, and liability.

Our society has degenerated into a cover-your-ass society where nobody is prepared to take the action you ask for, another action than the one you ask for, or no action at all unless you guarantee you’re not going to destroy their life over it. It’s essentially a world paralyzed by fear.

In this world, it makes perfect sense for corporations to spend hundreds of thousands of euros to perfect contracts with their everyday customers. (You didn’t think corporations wanted to spend money writing that crap and harassing customers with it, did you? Heck, they’d much rather spend that money on champagne at an executive retreat than give it to lawyers for making customers unhappy.)

So routine dismissive agreements to contract isn’t just one problem, the one of a slippery slope where people sign away rights. It’s at least two problems, where the second being how money is being siphoned off the economy to write the crap in the first place, caused by fear of litigation.

This may actually be an area where regulation is beneficial for everybody but the lawyers.

By establishing clear legislative lines of where corporations are liable and not (in a way that contracts cannot override it), and establishing clear rights for citizens against corporations – do not dare say consumers, these are citizens’ rights – that are equally inviolable, you can get rid of much of the need for these contracts in the first place. Nobody really wants them.

The danger in doing so would lie in regulatory capture – that is, that the balance between citizens’ rights and corporate liability is struck at a point where those with money would like it to be – and that you’d make it harder for future, unthought-of businesses, pretty much like the copyright monopoly is making life hell for everybody except the obsolete middlemen right now.

But wouldn’t that be better than people unknowingly signing away their firstborn sons because they’ve learned to not read contracts?

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About The Author: Rick Falkvinge

Rick is the founder of the first Pirate Party and is a political evangelist, traveling around Europe and the world to talk and write about ideas of a sensible information policy. He has a tech entrepreneur background and loves whisky.

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Hi. There is an old concept in contract law that could be used and revived here. It used to be, at least in some legal systems, that signatures on a contract where not the thing that made a contract valid. The signatures were there just to signal that the parties to the contract understood and had a mutual understanding of the contract they were embarking upon.

The key here is the mutual understanding or meeting of minds. If you cannot show that there was a meeting of minds, the contract would not be valid.

This is a simple notion that might allow for simple and effective regulation.

I’m one of the few that do read the Terms of Service agreements occasionally.

I would like to add that, even if you do read them, they’re very hard to interpret – even for me. And I’ve read a lot of ToS/EULA’s. It’s very hard to guess what consequences each permission granted has and what the actual intent of the permission given, originally was.

I guess that’s why there’s been so much publicity regarding some certain online services and for example rights/permissions given to submitted content like photos. It’s simply hard to know what they’re asking you to grant permission to and for.

In the UK at least most of these clickwrap “licenses” and contracts should be unenforceable as they are unfair contracts. I don’t think anyone has gone as far as court so there’s not much in the way of precedence…

Isn’t this a symptom of too complicated laws regarding the relationship between citizens and companies?
I think the solution is less complicated laws, not more laws to cover the shortcomings of the existing law jungle.
If less than half of citizens have an accurate idea of their rights, then I would argue that the laws are too complicated to serve their purpose.

Revise the laws regarding the citizen-company relationship, and either throw them away or make them unwaiveable by contract if they are important enough.

I think you might get your message across better if you used more realistic examples. Talking about “signing away their firstborn sons” is not constructive. Nobody takes this seriously because nobody has any reason to fear loss of their children’s custody from clicking an “I Agree” button on the web. Better list concrete, appreciable issues a user may genuinely run into — bonus points for examples from actual agreements in which the user really does sign away an important right they didn’t expect to lose. Be more specific on what regulation is needed to address the problem. What laws would need to be in place before you, personally, would feel comfortable clicking “I Agree” without reading the agreement? What laws do you think are necessary before providers of online services will stop having an “I Agree” checkbox during registration?

The telling point is this. ToS – or EULA – does not constitute law and in no small cases they include provisions which the law explicitly states you can not sign away carelessly.

That doesn’t matter if the customer actually believes in the agreement. And the corporation, unsurprisingly, does not endeavor to correct this view.

Hence you routinely click on “I Agree” when the terms you are being given actually retract far more than the corporation has a right to ask of you. And this is more or less outright fraud, fully as bad as including a fake invoice on the front of a box of chocolates, stating “By opening this box you agree to send me a cheque on the amount given above…”.

I never sign the license agreements. Somebody else has always done it. Quite often it is the cat that stepped on my keyboard when the EULA was on the screen.

Seriously, it is very hard for the industry to make the end user licence agreements to stick in court. Deniability is only one aspect. Undue use of a position of power, unreasonable terms and opaque language are all good avenues for undermining the position of the supplier.

Still, it is a bother to have to deal with this shit all the time. This is what we have government for. Make regulations that make the licence agreements redundant and impossibly hard to apply. It is not hard to make a basic set of rules that would be binding for both supplier and consumer.

While I entirely agree with this article, I’m curious, has a EULA ever been enforced in a court? I was under the impression that they were largely unenforceable, especially with software purchased from a brick and mortar, wherein a person doesn’t know what the EULA is until after opening the package, at which point it is nonreturnable.

How many took that poll linked? It leads to facebook which I am not a member of…

Sort of difficult knowing if the poll is even remotely relevant without number of participants. Especially since the very place it is posted likely skewed the numbers (though I am not disputing the claim that most don’t read ToS, especially not routinely).

please, never assume a poll put on facebook is relevant, if they are at all, I am deeply concerned about the mathematical education of people, sins it seems almost nobody understands it’s most basic concepts.

I don’t think that the existence of contracts is the problem. If I want to play a game, then I would be happy to write a contract together with the publisher. The publisher can write half of the contract, to tell that I cannot sue them. I can write the other half of the contract, telling that they must give me the source code of the game and that I have the right to modify it and publish copies. If the publisher writes the contract to long, I can ask them to give me something shorter. The problem is that businesses don’t let me participate in writing the contract. They write the entire contract, and ask me to accept it as is without negotiation. The only thing I can do is to decline, which I have done with much popular software.

Is is on Facebook, which has a horrible invasion of privacy in store for the ones who click “I agree”. I haven’t checked, but I also guess that they have very long contracts. Because of this the vast majority of people on Facebook will be the kind that doesn’t read the contracts.

With that said, I don’t think that there would be any huge difference if the poll was on the free web. Maybe a few percent units.

Believe it or not, I have been thinking of sending you an e-mail about this very subject for a few weeks. I was not going to concentrate on the problem however, but an at least partial solution: Legislate that EULA:s and similar MUST be written in non-Legalese and MUST NOT be above a certain length.

I read contracts when installing something new or signing up to a service. Stupidly enough I usually do not read them when an update is being done, such as for Flash or Java. I seldom read contracts on web pages because when you read them it is too late! Instead I use technical privacy guards such as an anonymizer service and Flash cookie removal.

In a few cases I have read the terms, said or thought “fuck that” and clicked “decline”. These include PayPal and some Samsung program.

In my opinion you shouldn’t be able to enter a contract without a eider written or digital signature.
With the exception of such contracts you can enter in real life without a signature, like when buying something in a store.

This would mean that on the web most people wouldn’t want or mostly even be able (most people yet don’t have a legal digital signature on hands) to enter into a contract.

So all this therms of use on websites would be 100% useless.

Same would apply to all programs, the EULA in the installer would be meaningless.

If they want y contract they have to sign it in store or at least let you read it first or before you buy on the web. All freeware software couldn’t be bundled with a contract unless you restrict access only to people whom have a digital signature (and that are to few to be a realistic option.)

Well, to put it simply, NO! That would be a horrible idea, because then every company would require a digital signature and not provide the possibility of an ink one. Or they would charge several euros extra for the “handling cost” of papers, so that nearly everyone eventually will get a digital one. And with either kind of signature you are worse off, because when you have signed it, the company knows who you are, and can keep track of you and sue you if you violate the terms…

it doesn’t take a master mind to work out that the way TOS are written and the amount of content are done purposefully to make them a complete pain to read, extremely time consuming to read and extremely difficult to understand. on top of all the other things, it gives companies a ‘get out of jail free’ card for just about any and all possible happenings, whereby the companies can get away with whatever has happened and the onus is always on the customer. once the money has gone over the counter, companies are not in then least interested in supplying any sort of customer service, no sort of responsibility for breakages, nothing. and the conduct is worse the bigger the company!!

I get the point of the article : dismissively agreeing to contracts is a bad habit and can cost lots. Just pointing out that there are protections in law against contracts that people were strong-armed into agreeing without negotiation.

That EULA (can’t remember from where) that states you give up your right to sue whoever wrote it? That clause renders it null and void.
In Germany, Valve is getting heat because people can’t resell the games they buy there. No matter what their term and conditions say, “common sense says you can resell things you buy . Now Valve, you will let your clients resell things they bought from you.” This is a Good Thing.

I am pretty sure that all of the people who clicked on “I agree” in your poll did so because they found it funny. Why else would you put that option there? Obviously a fun answer for the more cynical among us :)

In Germany there is still some consumer protection against uber-long terms and conditions in fine print. You could not be selling your first born or sign a life insurance contract when clicking on “I agree” to play a browser game. The contract has to be relevant and ethical and whatnot.

I am not a lawyer and I don’t want to pretend to be one – but there have been court rulings against deceptive terms and conditions, like when a big red button says “get your free ringtone” and there’s a really small condition at the bottom that says you simultaneously agree to a 40€ per month subscription, the condition is not valid.

Under our Civil Code, it is quite difficult to put unfair stuff into “Standard Business Terms” because your SBTs may turn out to be null and void just because they are unfair.

Software EULAs are mostly unenforcable in Germany because when you buy software in a store, you are already making a contract that entitles you to use and reverse engineer the software. This right cannot be taken away from you at a later point when the s/w forces you to click a button. The EULA doesn’t become part of your purchase contract either because you have no means to read the EULA before you buy the software. For this reason, most software that is only sold on the domestic market doesn’t include a EULA prompt.

The GPL (and similar licenses) are however enforcable because they do not take any rights away from the user that the user might have otherwise; They only give you additional rights.

About The Author

Rick is the founder of the first Pirate Party and is a political evangelist, traveling around Europe and the world to talk and write about ideas of a sensible information policy. He has a tech entrepreneur background and loves whisky.